JUDGMENT P.C. Pathak, J. l. The plaintiff having lost the suit in both the Courts below has filed this second appeal. 2. The appeal was admitted on the following substantial questions of law:- (1) Whether on the facts and circumstances of the case, the plaintiffs are not entitled to the relief claimed by them and that the respondent is entitled to dispossess the appellants from any portion of the suit properties? (2) Whether the order Ex. P. 2 passed by the Appeal Committee of the Corporation is valid and enforceable or is void and without jurisdiction ? (3) Whether or not the respondent was entitled to go behind the order Ex. P. 1 and plan Ex. P. 4 and order Ex. P. 2 and Ex. P. 5 passed by the competent authorities? 3. The plaintiff filed the suit in representative capacity stating that there exists a mosque over plot No. 32/2. Motitabela Main Road, Indore. The plot on its West, North and South is owned by mosque where bath-room, verandah, urinal, well, a tank and temporary sheds exist. All these structures and the garden are surrounded by a wire fencing. The land underneath the mosque and the land appurtenant to it are Municipal Kh. Nos. 15510-15511 and 15513, while Revenue Kh. No. is 981. The dimension of the plot and boundary are more properly delineated in the map (Ex P. 4). It was pleaded that the structure and the wire fencing exist for the last 100-125 years. When the permission to erect to wire fencing was refused, the plaintiff preferred appeals registered as appeal Nos. 529/63 and 43/66 which were allowed and the plaintiff was remitted to erect the fencing since the structures were found to be authorised. Despite the aforesaid orders, by notice dated 14-9-1966, the Municipal Corporation threatened to demolish the structure. In pursuance of decision in appeal No. 43/66, the plaintiff submitted a site plan for alteration and modification. The plan was returned on 6-10-1967 for furnishing details of the measurement. After due compliance, the plan was resubmitted on 28-11-1967, but the Corporation failed to accord to sanction within the prescribed period. The plaintiff, therefore, served a notice on 28-12-1967 and filed the present suit for declaration that the structures detailed in par all of the plaint and the wire fencing around them as per map are legal and duly authorised by the Corporation. The plaintiff, therefore, served a notice on 28-12-1967 and filed the present suit for declaration that the structures detailed in par all of the plaint and the wire fencing around them as per map are legal and duly authorised by the Corporation. The plaintiff also prayed for mandatory injunction commanding the Corporation to accord sanction to the alterations and modifications sought for and damages @ Rs.150/- per month. 4. The Municipal Corporation contested the suit on the grounds that the mosque is situated on Kh. No. 15511 only. Later in 1967, the plaintiffs encroached upon Kh. No 15510, 15513 and 15558, which vest in the Corporation. The defendants denied that any permission was given by the Appeal Committee and even if any such permission was given it was void being without authority. The plaintiffs were not entitled to the damages. 5. The trial Court as also the lower appeal Court held that the plaintiff failed to prove their case and, therefore, dismissed the plaintiff's suit. Hence, this second appeal. 6. Learned counsel for the appellant submitted that both the Courts below misconstrued the relief claimed by the plaintiff and erred in holding that the plaintiff claimed any declaration of title over the plot on which the super-structures and the garden surrounded by wire fencing exist. The plaintiff only claimed a declaration that the fencing of structures was duly sanctioned and not unauthorised. The attention of the Court was drawn to notice Ex. P. 3, dated 28-12 1962; whereby the Corporation cal1c~ upon the plaintiffs to remove the encroachment made by them on Kh. No.15510 by erecting a fencing and raising a garden. The fencing is shown by red line in map (Ex. P. 4). 7. After hearing learned counsel for both the parties, I am of the opinion that both the questions framed in the appeal must be answered against the appellant. The submission of the appellant that the claim is only for a declaration that the fencing was not unauthorised cannot be accepted. A careful reading of the plaint and relief clauses clearly show that the claim of title over all super-structures around the mosque and the garden enclosed by wire fencing is implicit. The relief clause is couched in a guarded and clever language as will be clear from para 9 (1) of the plaint. A careful reading of the plaint and relief clauses clearly show that the claim of title over all super-structures around the mosque and the garden enclosed by wire fencing is implicit. The relief clause is couched in a guarded and clever language as will be clear from para 9 (1) of the plaint. That clause prays for a declaration that the constructions mentioned in para 1 of the plaint .are duly sanctioned. When one examines para1 of the plaint, it reveals that the plaintiff detailed various structures over them asserting title and possession. The plaintiff further pleaded that the aforesaid structures garden etc. which are surrounded by wire fencing are on land belonging to the mosque and bears Municipal Kh. No. 15510, 15511 and 15513, and Revenue Kh. No. 981. The declaration sought for is that all these were raised by the plaintiff under the authority, which implies authority as owner on permission accorded by the Corporation. The conclusions are further fortified by the fact that by notice Ex. P. 3 the Corporation clearly stated that the plaintiff has encroached upon Kh. No. 15510 by enclosing with it by wire fencing and converting it into a garden and the plaintiffs want this notice to be a nullity. Reference may also be made to notices, dated 25-1-1967 (Ex. D. 9-C). 21-7-1967 (Ex. D. 10-C), 22-8-1967 (Ex. D. 11-C), 21-2-1967 (Ex. D. l2-C), 21-3-1967 (Ex. D. 13-C), 21-7-1967 (Ex. D. 14-C), 18-4-1968 (Ex. D. 15-C) and 22-8-1967 (Ex. D. 16-C) In all these notices the plaintiffs are accused of having encroached upon and raised various super-structures, etc. and fencing them by wire over the land which vest in the Corporation as claimed by it. Thus, it is clear that the dispute as to the title over the lands surrounding the mosque is there and was rightly tried by both the Courts below. 8. Learned counsel for the appellant argued that on account of lapse of time, the evidence as to acquisition of title over the lands underneath the structures and the gardan is obliterated and therefore, the plaintiff could only produce such evidence as could be collected in the circumstances of the case. The sheet-anchors of the plaintiff's case are order (Ex. P-l) dated 19-9-1963 of the Appeal Committee and another order (Ex. P-2) dated 18-8-1966 of the Appeal Committee. Learned counsel for the Corporation challenged both these documents as without jurisdiction. The sheet-anchors of the plaintiff's case are order (Ex. P-l) dated 19-9-1963 of the Appeal Committee and another order (Ex. P-2) dated 18-8-1966 of the Appeal Committee. Learned counsel for the Corporation challenged both these documents as without jurisdiction. Therefore, the question for decision is whether orders Ex. P-l & 2 were passed by the Appeal Committee without jurisdiction. Order (Ex. P. 1) was passed on an appeal filed by some of the plaintiffs on behalf of the mosque u/s. 403, against order dated 28-12-1962 Of the Municipal Commissioner; whereby the appellants were directed to remove the disputed boundry by fencing. That order of the Commissioner is Ex. P-3. A perusal of this shows that the Commissioner called upon the persons in-charge Mosque to remove the encroachment over Kh. No. 15510 by fencing and raising a garden over it. Building is defined u/s. 5 (7) of the Corporation Act, 195i, which runs as under :- "Sec. 5 (7)-"building" included a house, out-house-shed, hut and other enclosure of structure whether of masonry, bricks, wood mud, metal, or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths door steps walls including compound walls and fencing and the like but does not include a tent (or a temporary shed erected on ceremonial or festive occasions)". 9. The definition includes enclosures, compound wall and fencing and the like. By the said order, the action of the Mosque Committee in erecting a fencing and encroachment of Kh. No. 15510 both were stated to be unauthorised and, therefore, the Committee in-charge of Mosque was called upon to remove it within 8 days. Section 307 of the Act empowers the Commissioner to order removal of any 'building' erected in contravention of any Building Bye-Laws. Section 403 (2) provides for appeal against notices and orders under various sections, passed by the Commissioner. Section 307 is not specified in this sub-section. Therefore, the Appeal Committee could not entertain any appeal against Commissioner Order u/s 307. The Orders Ex. P-1 passed by Appeal Committee must be held to be without jurisdiction. 10. Ex. P-2 is an order sanctioning erection of wire fencing by the Appeal Committee. Section 293 prohibits erection or re-erection of the buildings without permission. Therefore, the Appeal Committee could not entertain any appeal against Commissioner Order u/s 307. The Orders Ex. P-1 passed by Appeal Committee must be held to be without jurisdiction. 10. Ex. P-2 is an order sanctioning erection of wire fencing by the Appeal Committee. Section 293 prohibits erection or re-erection of the buildings without permission. Section 294 provides that any person who intends to erect or re-erect a building shall submit to the Commissioner an application in writing for approval of the site together with a site plan and in case of land which is the property of the Government or of the Corporation, a certified copy of the document authorising him to occupy the land & another application in writing for permission to build. Sub-section (4) of section 294 lays down that a person shall not be required to comply with the provision of sub-section 1 (b) until such time as the site plan has been approved by the Commissioner. Any person aggrieved by the order of the Commissioner has right of appeal to the District Court u/s. 293 (3). On a proper reading of sections 293 and 294, it is clear that the Act places restriction on the right to construct a 'building' over any land No construction of building can be undertaken unless the site plan has first been sanctioned by the Commissioner. The sanction for erection or re-erection of the building can be accorded only when the site plan has been approved by the Commissioner. In other words, the approval of the site plan is a condition precedent to the making of an application for permission to erect building. Before according sanction, the Commissioner has to satisfy the applicant's title. If the land is of the Government or of the Corporation, the applicant has to file document authorising him to occupy such land. 11. Copy of Khasara Ex. P-11 for the year 1910 does not show any part of Kh. No. 15510 was in occupation of the mosque. No other document is placed on record to show that Kh No. 15510 was allotted to the mosque. In the absence of any order allotting Kh. No. 15510 the question of approving site plan much less any sanction to erect 'building' could be accorded by the Commissioner. No. 15510 was in occupation of the mosque. No other document is placed on record to show that Kh No. 15510 was allotted to the mosque. In the absence of any order allotting Kh. No. 15510 the question of approving site plan much less any sanction to erect 'building' could be accorded by the Commissioner. Even if any such order was passed by the Commissioner that can only be challenged in appeal u/s. 293 (3) to the district Court and not to the Appeal Committee u/s 403 (2) Since no appeal lay before the Appeal Committee it had no power u/s. 403 to accord sanction to the site plan filed on behalf of the Mosque Committee. Agreeing with the findings of the Courts below, it must be held that order dated 18-8-1966 Ex. P-2 passed by the Appeal Committee, is illegal and without jurisdiction. In consequence of this, the site plan Ex. P-4 approved by the Appeal Committee must also be held as without jurisdiction. 12. The learned counsel for the appellant also referred to an order (Dakhala) dated 15-7-1916 (Ex. P.5-A). This order disposed of an application; whereby a request was made for construction of latrines and bathroom in front of the mosque and enclose the adjacent land on the southern and the western side of the mosque by a wire fencing. The Municipality accorded permission to enclose the said land by wire fencing subject to the condition that the existing structures of latrine, bathroom will be removed and the new construction will be erected by the Municipality This document also does not indicate the area of the land appurtenant to the mosque on the south and the west which was allowed to be enclosed by wire fencing. No plan is attached to it. In the absence of any material, the plaintiff's claim over the area of land encroached by them by wire fencing cannot be accepted. Order of the Nazul Tabsildar, Ex. P 6 and other orders Ex. P-7 to P-10 all were passed because of orders Ex. P. 1 and P. 2. Therefore, these documents also do not establish the plaintiff's title over the land. 13. On appreciation of oral evidence led by the parties, Lower Court concluded that the disputed constructions were raised by the plaintiff after 20-6-1959 without obtaining any sanction. This finding must be accepted as binding in second appeal. 14. P. 1 and P. 2. Therefore, these documents also do not establish the plaintiff's title over the land. 13. On appreciation of oral evidence led by the parties, Lower Court concluded that the disputed constructions were raised by the plaintiff after 20-6-1959 without obtaining any sanction. This finding must be accepted as binding in second appeal. 14. The appeal fails and is accordingly dismissed without costs Counsel's fee Rs.150/- if certified.